' MUHAMMAD KHALID MEHMOOD KHAN, J. Respondents Nos. 1 and 2 filed a suit for declaration to the effect that they are the owners in possession of the property detailed in para 1 of the plaint in term on agreement to sell dated 28.12.2002 as they have paid the entire consideration, they are entitled to get the property transferred in their names and the petitioner be restrained to interfere in their possession, in alternate a decree for specific performance of agreement dated 28.12.2002 was prayed. The respondents as per contents of the plaint asserted that the petitioner through his father Bahadur Khan entered into an agreement to sell for the sale of land detailed in para 1 of the plaint bearing Khata No. 237, Square No. 30 village 262 North Tehsil and District Jhang, against consideration of Rs. 50,625/-, it was asserted that Bahadur Khan being the natural guardian of petitioner is entitled to sell the property of petitioner. The respondents Nos. 1 and 2 left the village and settled in Rawalpindi, they were reminded number of times to execute sale-deed in terms of agreement to sell dated 28.12.2002 but they delayed the execution of sale-deed or one pretext or the other and finally they refused to execute sale-deed. The petitioner through his natural guardian, his father Bahadur Khan, filed written statement whereby he specifically denied the execution of any agreement to sell. It was asserted that as per agreement to sell the land allegedly agreed to be sold is situated in Khata No. 237, Square No. 30 measuring 2 kanals, 5 marlas Chak No. 262 whereas the respondents are claiming that they are in possession of land situated in Square No. 29, Killa No.
8. It was specifically mentioned that they have no concern whatsoever with the land situated in Square No. 29, Killa No 8 allegedly in possession of respondents. The Trial Court of divergent pleadings of the parties, framed the following issues:-- "ISSUES:
(1) Whether the plaintiffs are entitled to the decree for declaration on the basis of the alleged agreement to sell (lqrar Nama) dated 28.12.2002? OPP
(2) Whether the plaintiffs have no cause of action and locus standi to file the instant suit? OPD
(3) Whether the plaintiffs are estopped by their words and conduct to bring this suit? OPD
(4) Whether the suit is not maintainable in its present form? OPD
(5) Whether the alleged agreement to sell (Iqrar Nama) is false, frivolous and baseless? OPD
(6) Whether the instant suit lacks Court-fee for the purpose of jurisdiction, if so, what would be correct valuation? OPD
(7) Whether the defendants are entitled to recover special costs under Section 35-A of CPC and the instant suit is liable to be dismissed? OPD
(8) Relief."
' The respondents got recorded examination-in-chief of three witnesses when the petitioner without cross-examining the said witnesses failed to appear and was proceeded against ex-parte on 18.6.2008. The respondents further examined two witnesses and the learned Trial Court vide judgment and decree dated 28.6.2008 dismissed the suit. The respondents filed appeal against the judgment and decree of the learned Trial Court dated 28.6.2008. The learned Appellate Court vide judgment and decree dated 29.4.2010 accepted the appeal and decreed the suit, hence, the present civil revision.
2. The petitioner has filed the civil revision claiming that now he has become major and as such he himself is filing the civil revision and arrayed his father as respondent No. 3.
3. Learned counsel for petitioner submits that the learned Trial Court has failed to appreciate the respondents' own admission that they have taken possession of land measuring 1 kanal, 19 marlas being the part of Square No. 29, Killa No. 8, Chak No. 262 North whereas as per alleged agreement to sell the suit property is mentioned measuring 2 kanals, 5 marlas having Khata No. 237, Squre No. 30 village No. 262 North Tehsil and District Jhang. Learned counsel submits that the property in possession of respondents did not belong to the petitioner, hence this very aspect was sufficient to dismiss the respondents' appeal. Learned counsel further submits that the respondents have failed to produce both the marginal witnesses, they have produced only one marginal witness and the other was not produced. Further submits that the natural guardian or the father of the petitioner was not competent to enter into an agreement to sell as no reason was shown in the agreement to sell why the natural guardian is selling the property of minors. Learned counsel submits that the appeal is liable to be dismissed. He has relied on Hafiz Tassaduq Hussain v. Muhammad Din thorugh Legal Heirs and others (PLD 2011 Supreme Court 241).
4. The respondents Nos. 1 and 2 were served, their counsel was appearing but subsequently they failed to appear and vide order dated.26.2.2015 all the respondents were proceeded against ex- parte.
5. Heard. Record perused.
6. The agreement to sell is Exh.P-1 which shows that Bahadur Khan being the natural guardian of the petitioner agreed to sell the land measuring 2 kanals, 5 marlas belonging to petitioner bearing Khata No. 237, Square No. 30 village 262 North Tehsil and District Jhang with the respondents Nos. 1 and 2 against consideration of Rs. 50,625/-. The respondents Nos. 1 and 2 purchased the land in equal shares. It is nowhere mentioned in the agreement to sell that the father of petitioner is handing over the possession of land measuring 1 kanal, 19 marlas situated in Square No. 29, Killa No. 8 in the same village. Further it is an admitted fact between the parties that petitioner was minor at the relevant time and his father being the natural guardian was entitled to sell his property in case he fulfils the condition under the law. The issue regarding the sale by the natural guardian has been dealt by this Court in Manzoor Hussain and others v. Bhole Khan and others (1991 CLC 640) and this Court has held as under:-- "I shall first advert to the question about the powers of a legal guardian under Mahomedan Law to alienate immovable property of his ward. Distinguished from a de facto guardian, father is legal guardian of the property of his minor children and Mahomedan Law given him power to alienate immovable property belonging to them in specified conditions. Power to alienate is neither absolute nor without fetters. Mahomedan Law subjects this power to stringent conditions. Books on Muslim Law lay down that a legal guardian can sell the immovable property of his ward; (1) where he can obtain double its value; (2) where the minor has no other property, and, the sale is necessary for his maintenance; (3) where there are debts of the deceased, and no other means of paying them; (4) where there are legacies to be paid, and no other means of paying them; (5) where the expenses exceed the income of the property; (6) where the property is falling into decay; and (7) when the property has been usurped, and the guardian has reason to fear that there is no chance of fair restitution. Apart from the above conditions, a legal guardian has no power to alienate immovable property of his ward."
' As not a single word has been written in the agreement about the necessity to sell the property of a minor the agreement itself is a void agreement even if it is proved that it was genuinely entered into between the parties. The respondents No. 1 and 2 while examining the witnesses have not examined one of the marginal witnesses. The Hon'ble Supreme Court of Pakistan has opined in Hafiz Tassaduq Hussain v. Muhammad Din through Legal Heirs and others (PLD 2011 Supreme Court 241) as under:- "Notwithstanding the above, now attending to the legal propositions urged, it is expedient to comprehend the true import of Article 17(2)(a) of The Order, 1984, the relevant portion whereof reads as follows:-- (1)
(2) ' Unless otherwise provided in any law relating to the enforcement of Hadood or any special law:
(a) in matter pertaining to financial or future obligation, if reduced to writing, the instrument shall be attested by two men, or one man and two women, so that one may remind the other, if necessary, and evidence shall be led accordingly; and
(b) in all other matters, the Court may accept, or act on, the testimony of one man or one woman or such other evidence as the circumstances of the case may warrant."
' From the clear and unambiguous language of the Article, in order to bring a case within its purview in the context of present case, two ingredients must co-exist, firstly there must be an instrument, secondly, it should pertain or relate to a matter either of a financial or future obligations. If the above two conditions are met, it is mandated that the instrument must be attested in terms of the Article. There can be no cudgel that an agreement of sale or to sell immovable property being a written document is an instrument within the meaning of law, however, to ascertain; its nature, the Black's Law Dictionary, Fifth Edition defines it as under:-- "Agreement of sale; agreement to sell. -- An agreement of sale may simply not merely an obligation to sell, but an obligation on the part of the other party to purchase, while an agreement to sell is simply an obligation on the part of the vendor or promisor to complete his promise of sale. Treat v. White, 181 U.S. 264, 21 S.Ct. 611, 45 L. Ed.
853. It is a contract to be performed in future, and, if fulfilled, results in a sale; it is preliminary to sale and is not the sale.
' The respondents have failed to produce marginal witness and as such the agreement has not been proved. Further in the plaint the respondents themselves have admitted that they have taken possession of property which was not the subject-matter of the agreement to sell, hence the learned Trial Court was justified to dismiss the suit. The learned first Appellate Court has erred in law while decreeing the suit and has ignored the most important fact of the case that the property subject-matter of the agreement to sell is not the subject-matter of suit. Further the agreement on behalf of a minor through his natural guardian did not fulfill the requirement of law. In these circumstances the impugned judgment and decree of the learned first Appellate Court dated 29.4.2010 is set aside and the judgment and decree of learned Trial Court dated 28.6.2008 is restored. Civil revision .